The trials and tribulations of a judicial reformist, her efforts to make change and bring transparency into the court system, and the system's response. Attorney Clark also comments on judicial reform issues around the USA, and lawyer rights. Go to About to report judicial misconduct or leave a note for Attorney Clark.

Monthly Archives: May 2012

May 23, 2012, the Minnesota Supreme Court in State v. Pratt, that Pratt is entitled to a new criminal trial, because retired Judge Steven Lange had also been involved with the Hennepin County Attorney’s as an expert in an unrelated civil case.

“We therefore conclude that the facts and circumstances of this case would cause a reasonable examiner—with full knowledge of those facts and circumstances—to question Judge Lange’s impartiality. Thus, Judge Lange was disqualified under Rule 2.11(A) from presiding at Pratt’s criminal trial.”

Applying the US Supreme Court’s factors from Liljeberg, the Minnesota Supreme Court held,

“Because Judge Lange’s relationship with the HCAO would cause a reasonable examiner to question his impartiality and reversal is required to maintain the public’s confidence in the independence, integrity, and impartiality of the judiciary, we reverse Pratt’sconvictions and remand to the district court for further proceedings consistent with this opinion.”

It’s curious that Eyewitness News 5 (abc) reported on the decision, without naming the judge who was disqualified for impartiality. Story here.

The media’s reporting of certain issues needs to grow and change as our community grows and changes.

I have posted a couple of times about Georgia judges resigning in significant numbers. See here.

GPB news reported an interesting angle.

“Judge John D. Allen, chair of the state Judicial Qualifications Commission, says the number of complaints against judges has risen dramatically compared to last year.”
“’We have gotten over close to 600 complaints this fiscal year on judges. About a 35 to 40 percent increase if I’m not mistaken.’ He says the largest increase comes from judges reporting problems with others on the bench.”

“A former member of the Michigan Judicial Tenure Commission confirmed Wednesday he has submitted a complaint against a sitting state Supreme Court justice who is alleged to have engaged in suspicious real estate transactions.”

The story goes into some detail about allegations that surfaced against Michigan Supreme Court Justice Diana Hathaway, and a real estate transaction.

Former Commissioner member Dan Pero waited for a time for Justice Hathaway to publicly respond to the allegations, and when she did not, he filed a complaint. This is interesting. The implication is that if she had not done anything wrong, she would have talked to the public about it.

Iron curtain. This is my term for the curtain between the public and the inner workings of the justice system. I have also called this the “wall.”

I am not talking about the sanctioned part of the appellate process for discussion of the case by the appellate panel or supreme court. I am not saying we need to get inside those rooms.

In describing the iron curtain or the wall, I am describing the inability or extreme difficulty of the public to obtain information about the courts, to obtain information about their own case that is occurring behind the scenes, and to obtain information about administrative processes and decisions made in the courts.

I have been known to say that it is difficult within a case to prove judicial misconduct or ‘irregularity in the proceedings’ when the issue is a judge’s conduct, because traditionally the judge controls the information. (Or some other judge who identifies with judges controls the information.)

What other place in the system do we allow the people under scrutiny to control access to evidence of guilt? Isn’t it human nature for judges to block access to the very evidence a party needs to show they have committed misconduct? (Such as evidence that a judge should have recused because he owns stock in the defendant corporation, or that a judge had an ex parte communication in her chambers with one of the lawyers.) To get at this issue, we need to openly discuss the need for evidence and information, and the access that the parties and the public have to it.

The public is also entitled to access information about administrative decisions made by the courts.

It’s good for all of us to examine the role of judges as administrators (something the public never voted them to do, and something the Governor likely did not consider upon appointing them). It’s good for judges to hear input from others. Surely they don’t claim to have a stranglehold on all good ideas about how to dispense justice.

Why would we as a society insist that all legislative meetings (whever 3 or more are gathered) be public. But 20-50 judges can meet and decide how justice will be administered, and we can’t even know if it happening?

The Berlin wall was long ago dismantled.

In this democracy, it is time to start prying away those bricks that have become cemented into our justice system. Time to tear down the wall.

You might recall that I ran for Hennepin County judge against Thomas Wexler in 2002.

I wrote a post about that, and my experience with Judge Wexler during a case. Part 1 here and Part 2 here.

In January 2009 Judge Wexler left the bench.

In late 2011, several clients of mine had issues with Judge Lloyd Zimmerman. In December 2011, one of my clients indicated by letter indicating he would seek to recuse Judge Zimmerman. For reasons that are still unclear to me, this set off a veritable firestorm of events. Judge Zimmerman began issuing sua sponte orders. These appeared, to us, to be roadblocks which would (unfairly) prevent the client from filing his motion to disqualify Judge Zimmerman.

My client made the decision to seek review by a higher court.

I went to the signing judge to get some orders signed first. I thought it was going to be perfunctory.

When I learned retired Judge Wexler was the signing judge that day, my instinct was to leave. But I have tried over time to give people in the system with whom I’ve had a bad experience the benefit of the doubt. I believe in second changes, and when appropriate, third chances.

What transpired was a fairly weird session, which ended rather quickly. Suffice it to say that Judge Wexler signed one of the proposed orders, and I left with one signed and one unsigned.

For reasons that have never been clear to me, documents signed by the signing judge are handed back to the lawyer (or police officer) to walk them to filing. I can tell you now from experience that this is a bad system. Why would we want to spend any time in this system arguing about what the signing judge signed? Why doesn’t the signing judge keep a copy like all other ports of call?

So anyway, I handed the documents to a court clerk at filing and thought nothing else of it.

As it turns out much was happening behind the scenes.

For purposes of this post, after talking to Judge Zimmerman and his clerk(s), Judge Wexler filed a complaint with the Minnesota Office of Lawyers Professional Responsibility against me.

Even after reading the complaint, it took me some time to figure out what it was about.

The complaint alleged that in the document I had walked to filing, I had “mix[ed] up the pages.”

Wexler stated, “When the [documents] were presented to me, I am almost 100% sure they were each stapled. So to mix them up Ms. Clark would have had to remove the staples and restaple them.”

Apparently the complaint was that I had purposely unstapled a document in order to mix up the pages.

Even at best, this was a strange complaint.

But here’s how it’s played out so far:

Craig Klausing of the Office of Lawyers Professional Responsibility “investigated” the complaint. This consisted almost entirely of him asking me two questions.

And then he charged me.

The litigation started gearing up, and Judge Wexler’s deposition was noticed.

The original document that I was said by Wexler to have purposely unstapled and then re-stapled was brought to a deposition by Judge Zimmerman in an envelope. The envelope was held by the prosecutor (Craig Klausing) of the OLPR until Judge Wexler’s deposition. Then it was opened in front of all of us there.

I took a picture of it.

Judge Wexler looked at the document, and admitted under oath that there was no evidence of a staple having been removed, and the document re-stapled. (Not verbatim.)

So…what happened to their case?

I was present and saw Craig Klausing hanging his head so much it almost touched the table. He would not look me in the eye.

You’d think Klausing would have dismissed this charge at that time.

But the case has trudged on.

I still am having difficulty figuring out how they can get (even in theory) from mixing up pages, to an ethics violation.

During one of the hearings, it became clear that Mr. Klausing or staff under his control had mixed up numerous pages in one of the hearing exhibits. I actually spent some time following the hearing sorting them out so that an accurate copy would go to the Judge. Apparently when Klausing mixes up pages, that’s not an ethics problem.

We live in a world of poignant double standards.

Interestingly, Judge Wexler stated in his complaint to the OLPR, “I expect that Ms. Clark will argue that our history of conflict per the 2002 election has some bearing.” I didn’t say it. He did.

There is a lot of discussion about judicial reform throughout the country. But what is it? It is a healthy sign of our democracy that a number of different groups with differing philosophies claim the name, ‘judicial reform.’ What are the common threads in the judicial reform philosophies?

And what are the differences?

Surely, a book could be written on this topic. This series of posts is a brief discussion.

America’s Roots: The Federalist Papers

Many branches of the judicial reform movement harken to the roots of our system of government.

When potential ratification of the US constitution was being discussed in 1787-88, Publius published arguments in favor of the constitution. These papers have now been attributed to James Madison, Alexander Hamilton and John Jay. In the 20th Century, the compilation of those articles became called The Federalist Papers. Every political science major in the 20th Century likely studied them. Federal judges have cited to them.

It’s never wrong to review the theoretical foundation of our system of government. Even with the lapse of years, there are always lessons to be learned from our roots. But like any analytical tool, this review should be kept in perspective. There is simply no way that Hamilton, Jay and Madison could have predicted our 2012 world. (Although if they were alive and writing today, I bet they’d have a blog….).

Of course, The Federalists were not writing on a blank slate. They, each in turn, were influenced by philosophers and other writers of their time. Madison, it is said, drew from the works of Montesquieu and Hume, and other writers of the enlightenment. And The Federalists’ writings have been commented on over time.

Tyranny of the Majority.

In conceptualizing a governing democracy, Federalist 10, now attributed to Madison, warned of the danger of factions. Madison defined faction as “a number of citizens, whether amounting to a minority or majority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”

The danger of factions was tyranny – otherwise known as oppressive power.

Because the form of democratic government emphasized the will of the people by majority vote, Madison warned that the mischiefs of democracy would swallow the benefits.

“A pure democracy can admit no cure for the mischiefs of faction. A common passion or interest will be felt by a majority, and there is nothing to check the inducements to sacrifice the weaker party. Hence it is, that democracies have ever been found incompatible with personal security or the rights of property; and have, in general, been as short in their lives as they have been violent in their deaths.”

For Madison, it was impermissible to restrict liberty. “The latent causes of faction are thus sown in the nature of man,” so the cure is to control their effects.

Over time, this concept (also discussed in Federalist 51) has become known as the tyranny of the majority.

Alexis de Tocqueville in Democracy in America Vol. I, published in 1835,posited that the dangers of the tyranny of majority over thought in America would lead to violence of party spirit and the judgment of the wise subordinated to the prejudices of the ignorant.

Published in 1859, John Stuart Mill’s work On Liberty discussed the tyranny of the majority as the “struggle between authority and liberty.” This described the tyranny of government over the people, which must also be controlled. And certainly, ‘liberty’ is a theme that frequently emanates from the pen of a judicial reformist.

These twin tyrannies (by the majority of the people and by government over the people) have been met in various ways in our democracy.

The Bill of Rights as Protector of Individual Liberty.

Of course, the US Constitution was ratified. But shortly thereafter, several amendments were added in order to protect individual liberties, such as the First Amendment protecting free speech, association, and freedom of religion and the Fifth Amendment, which guarantees that the federal government will not deprive an individual of freedom or property without due process of law. These are often called the Bill of Rights.

The US Supreme Court has over time applied the substantive liberty protections of the Bill of Rights to protect individuals from the tyranny by state governments.

US Justice Brandeis wrote in 1927,

Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.

Justice Brandeis was, of course, discussing the role of the courts in protecting the individual freedoms at issue. And in particular, he was discussing the court’s role in deeming a majority vote by legislative enactment a violation of individual liberty. (Now, we generally refer to this as the court’s review of the constitutionality of a statute.)

Indeed, a ‘cornerstone’ of our current system of government is the role of the courts in protecting individual liberty.

In 1900 US Supreme Court Justice Harlan wrote,

The doctrine of legislative absolutism is foreign to free government as it exists in this country. The cornerstone of our republican institutions is the principle that the powers of government shall, in all vital particulars, be distributed among three separate coordinate departments, legislative, executive and judicial. And liberty regulated by law cannot be permanently secured against the assaults of power or the tyranny of a majority, if the judiciary must be silent when rights existing independently of human sanction, or acquired under the law, are at the mercy of legislative action taken in violation of due process of law.

Minnesota and other parts of this nation are engaging in a struggle of factions and a debate about current government control, and how all of this affects liberty. The debate? How are members of the judiciary to be selected? And when and how does the public have a role in what occurs in the judiciary once those judicial officers have been selected? I’ll get into some particulars in my next post in this series.

But can it ever hurt for us as a debating community to remember our roots? To remember the theoretical debate that spawned and shaped the three branches of government, and to intelligently, consciously select options grounded in law and liberty?

Justice Brandeis also wrote in 1927,

Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.

And I leave you with the notion that there is time and opportunity for full discussion. Indeed, to prevent this debate from being marked by fear of change, holding onto current power, or silencing critics, all of those involved are called upon for fearless reasoning befitting our education, in furtherance of our political duty, and out of respect for the liberty that has been so long preserved by those who came before us.